Reimagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors

Murray, Justin, American Criminal Law Review

II. COLOR-CONSCIOUS PROSECUTION

The last Part outlined a tragic cycle of race-related disadvantage, crime, unconscious racism, and imprisonment that will continue and potentially worsen unless crucial actors--black communities, prosecutors, police, jurors, legislators, voters, and others--in the criminal-justice system challenge the pattern. The point is not to promote despair, but to lay the groundwork for progress and healing. This Part explores a variety of ways that one important set of actors--criminal prosecutors--can become a positive force for change by confronting bias in themselves and others, and also by coming to grips with the crippling social consequences of mass imprisonment. In doing so, I also aim to explain why color-conscious prosecuting is justified as a matter of professional ethics.

It might initially seem that the second conclusion follows inexorably from the first, but it does not. Even if prosecutors are capable of contributing to racial fairness in the criminal-justice system by their actions, there is still a case to be made that color consciousness--particularly color consciousness that redounds to the benefit of criminal defendants--violates the professional obligations of prosecutors as articulated in the American Bar Association's Model Rules of Professional Responsibility (and corresponding state rules). This counterargument rests on the premise that the American legal system is an adversarial one in which the lawyers of each side ought to zealously present the strongest version of their client's case, and leave it to the judge and jury to determine which side is correct. (175) The goal of this Part is not to wage general war on the adversarial system, but instead to advance a context-specific argument that prosecutors should adopt a non-adversarial, justice-seeking approach when addressing the racial dimensions of their cases.

In many areas of their work, prosecutors already make important contributions to racial justice, and it is important to acknowledge these efforts in order to present a balanced narrative. Prosecutors are responsible for enforcing hate-crime laws. They routinely interact with black witnesses, vindicate the dignity of black crime victims, and protect many predominantly black communities from the scourge of crime. (176) After many dark years of governmental indifference to criminal acts with a black victim, (177) these are no small accomplishments.

Those developments have been extensively documented and analyzed by other scholars and embraced by many prosecutors, perhaps because they are the dimensions of color consciousness that are consistent with an adversarial conception of the prosecutor's role. (178) Consequently, I will focus primarily on the less discussed yet equally important non-adversarial aspects of color-conscious prosecution--the ways in which prosecutors can help promote racial justice for black defendants, and not just for black victims.

One more caveat is appropriate at this juncture. I recognize that individual prosecutors do not call all of their own shots regarding how to properly exercise discretion. They must consider not only their own personal conception of justice, but also the culture and policies of the office in which they work. A few of my recommendations will be difficult, or even impossible, for some prosecutors to implement within their institutional environments; others may find their institutions more accepting, and even encouraging, of interventions in the service of racial fairness. In order to do justice to the complex institutional constraints that individual prosecutors are faced with, I will temporarily set those issues aside in this Part and provide them with comprehensive treatment in the next Part.

A. The Adversarial System and the Prosecutor's Dual Role

Within America's adversarial legal system, the "standard conception of the lawyer's role" consists primarily of two principles: neutrality and partisanship. (179) The principle of neutrality requires the lawyer to divorce his or her ethical and political beliefs from his or her legal service, and instead to adopt the goals and perspective of the client. (180) The principle of partisanship states that the lawyer must energetically pursue the interests of his or her client, even to the detriment of others. (181) According to these standards of professional ethics, the principal duty of most American lawyers is to seek an outcome favorable to his or her client, not to seek outcomes that are also fair to the opposing party or to third parties who are uninvolved in the adversarial showdown. (182)

Despite the centrality of the principles of neutrality and partisanship in the American conception of the lawyer's role, the Model Rules of Professional Conduct recognize countervailing principles in certain contexts as well. For instance, lawyers may not obstruct an opposing party's access to evidence, (183) deceive the Court, (184) or bypass counsel by communicating directly with represented opposing parties. (185) Lawyers are expected to be civil (186) and to conduct themselves as "officer[s] of the legal system." (187) Although American lawyers frequently push the envelope on, and even transgress, these and other nonadversarial requirements in the course of zealously representing their clients, it is worth noting that the Model Rules of Professional Conduct do not dictate a purely adversarial role for lawyers. (188) Instead, they supply a multivalent set of principles that can often come into tension with one another, demanding that lawyers creatively navigate through the resulting conflicts. (189)

The non-adversarial dimension of a prosecutor's professional ethics is broader and more well-defined than that of other lawyers. Prosecutors have a "dual role" to serve both as advocates for the government within an adversarial system, and also as "officers of justice." (190) Their obligation is to "'seek justice, not merely to convict."' (191) Nonetheless, due to the ambiguous meaning of the prosecutor's duty to seek "justice" and the internal dissonance within the prosecutor's "dual role," there are many conflicting views about how a prosecutor should reconcile these competing obligations. (192) The weight that a prosecutor should give to each part of his or her professional duty in any particular setting is not pre-ordained, and the prosecutor must frequently make judgments about the strength of the justifications for (and objections to) adversarialism in various situations. (193) These assessments are necessarily context sensitive, because the adversarial norm is valuable in some situations and destructive in others. (194)

Normative scholarship about the adversarial system is vast, and it is neither viable nor necessary to provide a comprehensive summary of it here. Three portions of the debate over adversarial lawyering are relevant to the upcoming discussion of color-conscious prosecution. The first dispute addresses whether adversarial legal norms advance or degrade human dignity. Proponents of adversarialism contend that it safeguards dignity by valuing the client's autonomy (195) and embodying the virtues of loyalty and friendship. (196) Detractors counter that partisanship degrades the dignity of opposing parties and fosters alienation instead of dignity-enhancing reconciliation between adversaries. (197)

The second area of controversy is whether adversarial norms provide the best way to discern truth. Proponents of adversarial legal practice contend that vigorous and partisan presentation of both sides of an issue is the best way to arrive at truth, because it ensures that no stone is left unturned, and it encourages creative advocacy on behalf of unpopular truths that might otherwise go overlooked. (198) Detractors counter that aggressive partisanship leads to deceptive advocacy, secrecy, and sensationalistic diversions calculated to undermine the quest for truth. (199)

Finally, there is an additional argument for neutral partisanship--based on majoritarian political theory--that is unique to prosecutors. (200) Some scholars take the position that prosecutors should generally charge whatever statutory crimes apply to a defendant's actions in order to give full effect to the political values reflected in legislation which, in turn, are the values of the legislators and the people who elected them. (201)

The remainder of this Part will explain why prosecutors should embrace a color-conscious and non-adversarial norm in relation to the racial issues that are implicated in their cases. The following Sections provide concrete examples of some of the most significant and recurrent racial issues, such as profiling and discriminatory jury selection. I will show that a color-conscious, justice-seeking approach in these areas promotes human dignity, furthers the quest for truth, and advances the worthy political value of protecting minorities who are at risk of oppression at the hands of a hostile majority. Thus, prosecutors should emphasize the justice-seeking component of their "dual role" (202) over the adversarial component when their cases involve issues of race.

B. Confronting Implicit Racial Bias in Discretionary Decision-Making

As I explained in Part I, racism does not ordinarily manifest itself in deliberate choices or easily detectable racial hostility. Rather, it most often takes the form of implicit bias and stereotypes that negatively influence the way Americans subconsciously evaluate blacks. The same is true of prosecutors. Gone are the days when a prosecutor could ask the jury, "[a]re you gentlemen going to believe that nigger sitting over there (pointing at the defendant), with a face on him like that, in preference to the testimony of [white] deputies?" (203)

Today, the most important way in which prosecutors contribute to racial injustice--or promote racial justice--lies in their discretionary decisions before and after trial: whether to indict or dismiss charges, whether to offer a generous plea agreement, and which sentence to recommend for a convicted defendant. In many prosecutorial offices around the country, these judgments are not governed by rigid guidelines. Due to the wide discretion entrusted to prosecutors in these crucial areas, many commentators consider them to be the "most powerful figure[s] in the administration of criminal justice." (204) Defense attorneys have no comparable power: their role consists largely in awaiting the prosecutor's decision and reacting to it. (205)

Prosecutorial discretion is full of both peril and promise. When burdened by unrecognized racial bias, a prosecutor's discretion will be guided by factual misperceptions and an unjustified propensity for retribution in cases involving black defendants. However, when liberated by color consciousness, discretion contains the potential not only to be fair and non-discriminatory, but even to affirmatively advance the dignity and social position of blacks who are under attack by racial profiling and unjust laws. This Section explains why discretionary decision-making is susceptible to implicit racial bias and how prosecutors can confront their own stereotypes so as to improve the quality of the justice they deliver. The next Section will show how color-conscious prosecutors can utilize their discretion to actively promote racial equity.

1. The Perils of Prosecutorial Discretion

Studies investigating cognitive bias have consistently shown that discretionary decisions without clear guidelines present the highest risk of racial bias. (206) When the proper course of action is definite and obvious, deviations are typically the result of conscious mental processes. Because racial discrimination is rarely based on deliberate hostility in contemporary America, it is less likely to come into play when the parameters of a situation are well-defined. (207) By contrast, when judgments are to be made on the basis of undefined criteria and subjective assessments, there is more room for racial bias to drive the decision-making process. (208) Prosecutors and police are constantly called upon to make judgments that involve unstable and contested criteria. Before police may arrest a suspect, they are constitutionally required to have "probable cause" to believe that the suspect is guilty of a crime. (209) Thus, even when an officer believes a crime has been committed, the officer must use his or her discretion to determine--based on largely undefined factors--whether the crime is a serious enough matter to justify an arrest, or whether a slap on the wrist will suffice.

Similarly, prosecutors must dismiss charges when they believe that the police lacked probable cause to justify the arrest. (210) However, they may also dismiss a case for other, less tangible reasons, such as a strategic assessment that the jury is not likely to find the defendant guilty, or a moral judgment that the defendant deserves a break. (211) If a prosecutor views the defendant as a dangerous person who is likely to flee or commit additional crimes prior to trial, he or she may request that the court detain the person until trial; otherwise, the prosecutor may consent to pretrial release. (212) Prosecutors make similar judgments regarding the defendant's factual guilt, dangerousness, and moral culpability in determining which plea agreement (if any) to offer, which charges to pursue, and which sentence to recommend to the judge or jury at the end of trial. (213)

Some cases involve facts that make the correct course of action fairly obvious, largely removing the discretionary element from the decision. For instance, when the facts strongly suggest the guilt of a defendant charged with a serious violent crime, it is not difficult to conclude that the defendant is dangerous and therefore should not be released prior to trial. These circumstances do not provide much room for implicit bias to influence outcomes.

However, most cases are less clear cut: there may be unresolved questions regarding whether the evidence points toward the defendant's guilt, or, even if the defendant is guilty, it is often debatable whether he or she is a danger to society, capable of rehabilitation, or morally deserving of a long prison sentence. These ambiguities present a serious risk that the stereotypes described in the last Part--that blacks are angry, dangerous, culpable, and criminal--may adversely shape the prosecutor's subjective evaluation of the defendant, resulting in harsher discretionary treatment. (214)

None of the justifications in favor of adversarial lawyering introduced in the last Section--promoting human dignity, democratic values, or the quest for truth--can justify passivity in the face of potentially outcome-determining racial stereotypes. Nor can color-conscious advocacy by defense counsel compensate for the misguided exercise of prosecutorial discretion. It is for the prosecutor to make the fateful decisions about charging, plea bargaining, and influential sentencing recommendations. (215) Defense counsel is left to react. (216)

2. Ameliorating Implicit Racial Bias in the Exercise of Discretion

There is no easy or complete solution to the problem of implicit bias, but psychological research again charts the way forward. As I explained in the previous Part, most Americans simultaneously embody three traits: (1) at the conscious level, they oppose racism and want no part in it; (2) at the subconscious level, they are beholden to racist stereotypes about blacks; and (3) they are in denial about their subconscious racism. (217) Because these individuals are unaware of their implicit biases, they are unable to mobilize their conscious egalitarian beliefs as a counterweight to those biases. (218)

Prosecutors (and others) must give up on the color-blind strategy for combating racism, which emphasizes repression and denial, and instead seek racial awareness. Racial awareness is multidimensional. It includes the various aspects of historical, psychological, and political consciousness introduced in Part I. For prosecutors, the first step toward color consciousness is to acknowledge and strive to understand their own racial stereotypes about blacks, and to identify the situations in which those biases are likely to influence their decision-making. Wielding this knowledge would enable prosecutors to leverage their anti-racist beliefs and consciously inhibit their stereotypes in situations where those stereotypes would ordinarily be activated. (219)

One high-impact way to acquire awareness about stereotypes is to take an IAT, (220) which provides a large volume of information for little or no cost: it is simple, freely available online, and minimally time-consuming. (221) Whether or not they decide to take an IAT, prosecutors should compare the way in which they assess blacks and whites in a variety of everyday situations. When walking down a city street at night, do they have the same reaction when approached by a group of young white men as they do when approached by young black men? Similarly, prosecutors should bring awareness-raising, de-biasing practices into their daily work. One way prosecutors can do this is by mentally switching the defendant's race and observing whether they would reach the same conclusion about whether to dismiss charges, offer a generous plea, emphasize retribution or rehabilitation, etc. (222) De-biasing measures such as these are simple, non-burdensome, and realistic. If implemented, they hold considerable promise for enhancing racial fairness in prosecutorial decision-making.

C. Promoting Racial Equity Through the Exercise of Discretion

Color consciousness not only helps to diminish bias in prosecutorial decisionmaking, but it also provides ways for prosecutors to make affirmative contributions to racial justice. A prosecutor's interactions with police, charging decisions, and sentencing recommendations all present opportunities to challenge racial profiling. (223) Furthermore, prosecutors can blunt the force of unjust criminal laws by deciding not to seek indictments based on those laws, offering more equitable plea arrangements based on other laws, or recommending sentences that are commensurate with the true nature of the offense. (224)

Most of the commentators who are worried about racial unfairness in the criminal-justice system are also deeply concerned about prosecutorial discretion, in large part due to the reasons described in the last Section. (225) They may be skeptical that discretion can be used as a positive force for racial justice. I do not take a position on the highly controversial subject of whether prosecutorial discretion is, on the whole, a good or a bad thing, or how it should be constrained. (226) In our current system of criminal justice, the fact is that prosecutors have discretion--more in some jurisdictions than others--and no major social or political currents suggest that this reality will change in a meaningful way anytime soon. (227) AS long as prosecutors are authorized and expected to exercise discretion, it is important to understand how they can employ that discretion in the service of racial justice. This Section explores several concrete ways in which they can do so.

1. Challenging Racial Profiling

As I explained in Part I, the profiling of suspects on the basis of race is an explicit and accepted part of policing in some jurisdictions, and a deeply entrenched, implicit law-enforcement practice in others. Consequently, many more innocent blacks are monitored, stopped, questioned, and harassed by police than similarly situated innocent whites, and far more factually guilty blacks wind up with criminal records for the same behaviors that whites routinely get away with. (228)

Prosecutors are uniquely well-positioned to challenge these forms of racial profiling. They work directly with arresting officers to build the case against a criminal defendant, and, on occasion, they may begin coordinating with investigative officers before an arrest is made. These interactions enable prosecutors to question officers about their reasons for investigating defendants and educate (or remind) officers that racial profiling is not only morally unacceptable, but that it may even jeopardize the government's ability to secure a conviction or, more likely, expose the police department to civil litigation. (229)

Existing data suggests that certain types of cases--such as traffic infractions, (230) minor public-order violations, (231) and drug possession and distribution (232)--are especially likely to originate in racial profiling by law enforcement. Prosecutors should carefully scrutinize the basis …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Reimagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors. Contributors: Murray, Justin - Author. Journal title: American Criminal Law Review. Volume: 49. Issue: 3 Publication date: Summer 2012. Page number: 1568+. © 1994 Georgetown University Law Center. COPYRIGHT 2012 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.